September 18, 2014

The Court denied country-star Taylor Swift's motion to dismiss plaintiff's trademark infringement and dilution case. Defendants contended that Plaintiffs had failed to show a likelihood of confusion. The Court found that while it is possible that Plaintiffs may not be able to present sufficient evidence to survive a summary judgment motion, they had plausibly alleged facts to survive a motion to dismiss. Plaintiffs alleged that they own the mark LUCKY 13, and further alleged that the Defendants’ use of the identical LUCKY 13 mark in connection with the sale of t-shirts online and through the online promotion of a “Lucky 13 Sweepstakes” is likely to cause confusion. The Court also found that Plaintiffs sufficiently alleged that the mark is famous so that the dilution claim survived.

September 17, 2014

The 6th Circuit affirmed summary judgment in favor of defendants in a copyright-infringement action wherein Plaintiff alleged that Defendants infringed his musical composition Anytime, AnywhereAmanda with the musical composition Everywhere by country-artist Tim McGraw. On appeal, the 6th Circuit found that the District Court applied the correct standard -- that defendant had an opportunity to access Plaintiff's song -- and that Plaintiff could not meet that standard. "There is no dispute that Anytime was never published or distributed, never received radio play, is not available on iTunes, has not been performed by third parties, and that Martinez performed the song only in South Texas. Defendants’ only possible access would have been through the demo tape Martinez gave to Tomac." The record, though, was devoid of any evidence that the demo tape had been passed along. "Martinez’s theories of access through third-party intermediaries fall short. The district court properly determined that Martinez presented only 'attenuated chains of hypothetical transmittals' in support of his claim that Defendants heard or had a reasonable opportunity to hear Anytime. See Patry on Copyright § 9:29. The chain of access vanishes after Tomac gave the lone demo tape to Bartley in the fall of 1996, and the hypothetical transmittals fail to support
a reasonable inference that any Defendant or associate of any Defendant received a copy of Anytime, much less that Wiseman or Reid, the alleged infringers, heard or had a reasonable opportunity to hear Anytime and copied it before they co-wrote Everywhere in November 1996." Lastly, there was no error because no evidence was presented that protectible elements of the two works are substantially similar.

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On The Cover Songs ("OTCS") is compiled by attorney Jordan Greenberger, the founding member of J. Greenberger, PLLC in Brooklyn, New York.

OTCS is provided for general informational purposes only. By using OTCS, you agree that the information on this blog does not constitute legal or other professional advice and no privileged or confidential attorney-client or other relationship is created between OTCS and you. The opinions and views expressed on OTCS are those of the individual author of OTCS and not J. Greenberger, PLLC. Any "comments" posted on OTCS solely represent the opinions and views of the commenter/poster and not the individual author of OTCS.